Carter v. Cent. Vt. R. Co.

• Decision Date: 13 April 1900
• Citation: 47 A. 797,72 Vt. 190
• Parties: CARTER v. CENTRAL VERMONT R. CO.
• Court: Vermont Supreme Court

47 A. 797

72 Vt. 190

CARTER

v. CENTRAL VERMONT R. CO.

Supreme Court of Vermont. Caledonia.

April 13, 1900.

Exceptions from Caledonia county court; Rowell, Judge.

Action by W. H. Carter against the Central Vermont Railroad Company to recover for personal injuries received in crossing defendant's track at a highway crossing. From a judgment on a verdict directed for defendant, plaintiff brings exceptions. Affirmed.

There was no evidence tending to show that defendant did not do what it could to avoid disaster after it discovered the plaintiff in a position of peril.

Argued before TAFT, C. J., and TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

Wendell P. Stafford, for plaintiff.

Dunnett & Slack and Hunton & Stiekney, for defendant.

TYLER, J. At the close of the plaintiff's testimony, the defendant moved the court to direct a verdict for the defendant, for that it appeared that the plaintiff was guilty of contributory negligence in approaching and driving upon the railroad track with too great speed, and in not using his eyes and ears with vigilance to discover and avoid the approaching train. The court granted the motion, and directed a verdict and judgment for the defendant, which direction the plaintiff claims was error.

There being no conflict in the testimony in respect to the facts and circumstances attending the occurrence of the accident, the only question was whether those facts and circumstances were so decisive of the plaintiff's contributory negligence that there was no room for rational doubt upon the subject.

The rule has been stated in many different forms, but it is this, in substance: When it appears from undisputed facts, from the plaintiff's own evidence, that he was not in the exercise of that degree of care which careful and prudent men would exercise in circumstances of like exposure and danger, the question of the plaintiff's right to recover is one of law for the court. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff's fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion. Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358. In Scheiber v. Railway Co. (Minn.) 63 N. W. 1034, after remarking that the decisive test is whether or not fair-minded men could honestly differ as to the inferences to be drawn from admitted facts, Start, C. J., said: "This rule must be applied in practice with caution, lest the courts usurp the functions of the jury, and unwittingly deprive a party of his constitutional right to a trial by jury; and, if there is a fair doubt as to the inferences to be drawn from an admitted state of facts, the question must be submitted to the jury; but, in the absence of such fair doubt, it is equally the duty of the court to decide the question as one of law, and instruct the jury accordingly." Shear. & R. Neg. § 56, states the rule thus: "When the facts are clearly settled, and the course which common prudence dictated can be so clearly discerned that only one inference can be drawn, * * * it is the duty of the court to take the case away from the jury. * * * The question is then one of law for the court to decide." Worthington v. Railroad Co., 64 Vt. 107, 23 Atl. 590, 15 L. R. A. 326.

The duty of a traveler on arriving at a railroad crossing to look and listen for an approaching train seems too obvious to require judicial declaration, yet it has been stated in numerous cases. Some courts go further, and make it the traveler's duty to stop and look and listen; but the rule requiring the traveler to stop, though a wholesome rule, cannot well be adopted as one of general application, for in some localities the traveler can see the track so great a distance that he can determine by the sense of sight whether or not he can safely cross, as in Manley v. Canal Co., 69 Vt. 101, 37 Atl. 279. But when the view is obstructed it may be his duty to stop, in order to listen effectually, and especially is this the case when his hearing is obstructed by the noise of his own carriage, or by objects situated between him and the track. It has so often been stated that the traveler must approach a railroad crossing with his senses of sight and hearing alert for danger that it may be said to have become a maxim. When the situation is such that one of these senses cannot be fully used, he must be more alert in the use of the other. By the impairment of these senses or either of them, or by the intervention of objects to obstruct his sight or hearing, ordinary care may require him to stop in order to ascertain with reasonable certainty, before driving upon the track, that a train is not approaching. Manley v. Canal Co., supra. In Fletcher v. Railroad Co., 149 Mass. 127, 21 N. E. 302, 3 L. R. A. 743, it is stated: "As a general rule, a person is not in the exercise of due care who attempts to cross a railroad track without taking reasonable precaution to assure himself, by actual observance, that there is no danger from approaching trains."

Let us apply these rules, which are as well settled as any rules of law, to the facts in this case. The plaintiff was driving a pair of heavy, slow horses, attached to a wagon and load of about a ton's weight He was a stranger in the locality, but was apprised of the crossing by a sign which was visible for a distance of 47 rods before he reached it and which he testified he saw. He had also seen a train going south a short time before. He also testified that he was watching for a train as he drove along, and that no signals were given. The crossing was dangerous. An approaching train was hidden from the traveler's view until he was near the crossing, and the sound of it was obstructed by an intervening embankment. The crossing itself was on a curve in the track. The plaintiff, who, as the exceptions state, had good sight and hearing, and was ready to act in an emergency, trotted his horses along at the rate of four or five miles an hour, his heavy team making some noise on the frozen ground, and, without stopping or slackening his speed, he drove upon the crossing. When his horses' forward feet were between the rails his near horse threw up its head, and looked over the other one's neck, which attracted the plaintiff's attention; and he then looked around, and saw the engine just appearing in sight in the cut at the angle or curve in the highway, and at a distance of from eight to twelve rods from him. Whatever the exact distance was, the plaintiff was not able to urge his horses across the track in time to prevent a collision and injury.

The plaintiff testified that when he noticed this action of his horse he spoke to it, and said, "'What is the matter?' and looked around to see, and right about this angle here the engine just appeared in sight in the cut" In another connection, he said that when he noticed the action of his horse he looked up. Witnesses called by the plaintiff testified that when his horses' forward feet were between the rails the plaintiff could have seen up the track two hundred feet; others said that when near the track he could have seen seven or eight rods. If the case made by the plaintiff discloses the fact that the accident happened as a result of his negligence, or that his negligence contributed to it, he is not entitled to recover. The defendant's negligence must have been the sole cause of the accident. Ordinary care on the plaintiff's part, in the circumstances, required him to approach the crossing with his senses alert for danger. The plaintiff's counsel would hardly contend that, if the plaintiff had seen the train before he reached the crossing, he would have been in the exercise of ordinary care in attempting to cross. The train was too near and running too fast for such an undertaking. It was said by the court in Blaker's Ex'x v. Receivers, 30 N. J. Eq. 240: "A person intending to cross a railroad track is bound to look and listen for an approaching train; and if he sees or hears a train approaching, and then daringly assumes the hazard of attempting to cross in advance of it, and fails, he must bear the consequence of his folly." Similar language was used by Mr. Justice Field in Railroad Co. v. Houston, 95 U. S. 702, 24 L. Ed. 543. The same was held in Burnett v. Railroad Co. (N. J. Sup.) 39 Atl. 603, and in State v. Cumberland & P. R. Co. (Md.) 39 Atl. 610.

If, by the vigilant use of his eyes and ears, —which in the circumstances is only ordinary care,—the plaintiff might have discovered and avoided the danger, and omitted such vigilance, he was guilty of contributory negligence, and he is chargeable with such knowledge of the approach of the train as he might have obtained by the exercise of that degree of care which in the circumstances of danger he was bound to use. The decisions have been somewhat diverse upon the subject of directing verdicts in cases similar in their facts to the present one.

In Chase v. Railroad Co., 78 Me. 346, 5 Atl. 771, the plaintiff's intestate approached the crossing, trotting his horse, and without slackening his speed, and just as his horse's head reached the crossing a train of cars that had been concealed from his view shot out of a cut and upon the crossing, so that his sleigh was upset and himself fatally injured. The court said there could he no doubt that, if the intestate had stopped so he could have listened attentively, he would have heard the train, and that he could not listen carefully and effectually when driving a team with sleighbells attached, without stopping to still the noise of his team; and it was held to be negligence per se for a person to cross a railroad track without first looking and listening for a coming train; that, if his view is unobstructed, he may have no occasion to listen; but, if his view is obstructed, then it is his duty to listen, and to listen carefully; and if one is injured at a...